Randon & Tawney
[2023] FedCFamC2F 1021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Randon & Tawney [2023] FedCFamC2F 1021
File number(s): PAC 2320 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 15 August 2023 Catchwords: FAMILY LAW – PARENTING – Rice & Asplund – Leave to commence fresh parenting proceedings refused. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Rice & Asplund [1978] FamCAFC 128
Saif & Saif [2020] FamCA 119
Sanders & Sanders (No 5) [2023] FedCFamC1F 59
Division: Division 2 Family Law Number of paragraphs: 50 Date of hearing: 3 May 2023 Place: Parramatta Counsel for the Applicant: Mr Katsinas Solicitor for the Applicant: Kalpaxis Legal Pty Ltd Counsel for the Respondent: Ms Hamilton Solicitor for the Respondent: Gordon & Barry Lawyers Pty Ltd ORDERS
PAC 2320 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RANDON
Applicant
AND: MS TAWNEY
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
15 AUGUST 2023
THE COURT ORDERS THAT:
1.The father’s Amended Initiating Application filed 4 October 2022 be dismissed.
2.All outstanding applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This threshold hearing relates to final parenting orders made by Judge Boyle on 4 November 2019, by consent of the parties, in relation to the child, X, born in 2011 (“the child”). The child is currently aged 11 and will turn 12 next month.
The father is seeking to amend and vary the final orders made on 4 November 2019 on the basis that there has been a significant change in circumstances since the orders were made.
PROPOSALS
In summary, the father seeks:
(a)To spend an additional night per fortnight during school term with the child, from four nights each fortnight to five nights each fortnight;
(b)To spend half of the Term 4 school holidays in a block period with the child, as opposed to the current arrangement, which is for week about time, failing some other agreement between the parties;
(c)A variation in changeover arrangements such that on Wednesdays the changeover occur at school instead of at the child’s sports lesson. The father also seeks an order that the mother ensure that the child’s half siblings, two boys aged four and six years, do not interfere with the changeover occurring;
(d)That the parents enrol the child in events and extra-curricular activities that fall within their own times with the child and that the parties enter into discussions prior to enrolling the child in any extra-curricular activity.
(The Court observes that the present Order 9 provides, “That both parties will use their best endeavours to facilitate [the child’s] attendance on all extracurricular activities he is enrolled into when [he] is in their care.”)
(e)That each party keep the other informed of any medical appointments that they propose the child attend with notice of the appointment so that the other parent may attend.
(The Court observes that the present Order 2 provides for the parties to have equal shared parental responsibility for the child.)
(The Court also observes that the present Order 16 provides, inter alia, that each party will keep the other informed of any medical problems or illnesses suffered by the child, and any medication that has been prescribed for the child including instructions for use.)
(f)To restrain the mother from:
(i)Attending any medical or educational appointments, consultations, or assessments unless the father has been informed;
(The Court observes that present Orders 16 and 17 provide, inter alia, that each party will keep the other informed of any medical problems or illnesses suffered by the child, or medications prescribed for his use, and also provide for communication between the parties in the event that the child suffers a medical emergency requiring medical attention.)
(ii)Denigrating the father. The scope of denigration shall include, amongst other things, yelling at the father and the recording of changeovers;
(The Court observes that the present Order 20 provides that the parties be restrained from, inter alia, denigrating the other parent or a member of the other parent’s family or household in the presence of or hearing of the child.)
(iii)Referring to the father as “Mr Randon” in the presence of the child. The mother must also ensure that the child does not call any individual other than the father “Dad” or “Daddy” whilst the child is in the mother’s care;
(iv)From making the child change clothes prior to changeover in public or at school in the presence of others;
(v)From allowing the child to view M+ rated films/content on any electronic device.
The mother seeks orders as set out in her Response to Initiating Application filed 6 October 2022 that the father’s application be dismissed.
MATERIAL RELIED UPON
The father relied upon:
(a)His Case Outline filed 26 April 2023 and amended 3 May 2023;
(b)Amended Initiating Application filed 4 October 2022;
(c)His affidavit filed 11 April 2023;
(d)Affidavit of Ms B, the father’s wife, filed 11 April 2023.
The mother relied upon:
(a)Her Case Outline filed 27 April 2023;
(b)Response to Initiating Application filed 6 October 2022;
(c)Her affidavit filed 11 April 2023;
(d)Affidavit of Mr C, the mother’s partner, filed 11 April 2023.
EVIDENCE
In determining this case, the Court has had regard to the written material referred to above, and the parties’ submissions.
There was no cross-examination at the threshold hearing of either the mother or the father. Accordingly, and in accordance with relevant legal principle, the Court is required, for the purposes of determining whether or not there has been a significant change in circumstances since the final parenting orders of Boyle J on 4 November 2019, to take the father’s evidence at its highest, noting that there are significant factual disputes.
The father’s affidavit
The Court does not propose to set out the entirety of the father’s affidavit. The Court has considered the entirety of his affidavit filed 11 May 2023.
The father’s affidavit evidence, to the extent that it was relied upon in respect of the threshold issue, in summary, refers to, inter alia, the following:
(a)The relationship between the child and the father, the father’s wife, and the extended paternal family has greatly improved since the orders were made;
(b)The father and his wife frequently take the child to Region D on weekends to visit the extended paternal family. The current orders require them to truncate these visits in order to return to Sydney in time for changeover at 7.00 pm on Sunday;
(c)The child has specifically requested to spend more time with the father;
(d)The father now enjoys greater flexibility in his employment, as does his wife, which would allow him to spend more time with the child;
(e)The current default order for week about time during term four holidays effectively prevents the father from taking the child on significant vacations;
(f)The child has been exposed to parental conflict at changeover;
(g)That the mother has referred to the father as “Mr Randon” in conversations with the child, leading the child to do the same, and has told the child to call her partner “Dad”;
(h)The mother has repeatedly made medical decisions for the child, including engaging specialists, organising surgery, and booking appointments, without first consulting the father;
(i)The mother has enrolled the child in extra-curricular activities which occur during the father’s time, without first consulting the father;
(j)The mother’s decreased ability to assist the child with his homework;
(k)Improvement in the father’s mental health.
The affidavit of Ms B
The Court has considered the entirety of this affidavit. Ms B set out the history of her relationship with the father. She corroborated a number of the matters deposed to by the father. She described the positive relationship that the child has developed with her parents and family friends.
The mother’s affidavit
The mother disputed many of the father’s allegations. She denied that there had been a significant change in circumstances.
As already stated, for the purpose of determining this Rice & Asplund issue, where there is a factual dispute between the mother and the father, the Court is required to take the father’s evidence at its highest.
The affidavit of Mr C
Mr C generally corroborated the evidence of the mother. He described a loving relationship between himself, the child, and the child’s half-siblings.
RELEVANT LEGAL PRINCIPLES
In relation to the so called rule in Rice & Asplund [1978] FamCAFC 128; (1979) FLC ¶90–725 (“Rice & Asplund”), the Court refers to a discussion of legal principle in Sanders & Sanders (No 5) [2023] FedCFamC1F 59 where Brasch J stated:
35The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the children’s best interests. However, the mother’s Response is the application be dismissed. She relies upon Rice & Asplund in that regard. In an often cited extract, Evatt CJ said:
The principles which in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some new factor which was not disclosed at the previous hearing which would have been material.
(Emphasis added)
36Not long after that Nygh J said this in McEnerney & McEnerney [1980] FamCA 43; (1980) FLC 90-866 at 75,499:
....the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
One comes back to the fundamental principle that the interest of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court too soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court.
(Emphasis added)
37Similarly, the ICL referred me to Langmeil & Grange (2013) FamCAFC 31 (“Langmeil & Grange”), where it was said that the rule in Rice & Asplund is founded on the notion that continuous litigation over children is generally not in their best interests. That consideration arises squarely in this matter.
38In a recent decision of the Appeal Division in the matter of Trewitt & Brock [2021] FedCFamC1A 9 (“Trewitt”), there was a discussion about whether dismissal of an application such as the father’s, is a parenting order with the meaning of s 64B(1) of the Act. That section provides:
(1) A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order.
39The father asks me to make parenting orders. However in Trewitt the Appeal Division reminded at [25]-[26]:
It is important to note that s 64B of the Act refers in terms to the making of an order and not to the nature of the application that led to the order itself. Attention must be given to the nature of the order itself and not the application that led to the order being made.
Here the father sought to vary the existing orders so that there was to be equal shared parental responsibility and the imposition of an equal time arrangement. If those orders were made they would unquestionably be parenting orders as defined by s 64B of the Act. They were not the orders made and the application was simply dismissed. Such an order of dismissal, however, does not discharge, vary, suspend or revive an order made under s 64B(2) of the Act. Therefore there is some difficulty in describing the order of dismissal as a parenting order.
40 Relevantly, this was also held in Trewitt at [29]-[31]:
The weight of authority and the terms of s 64B of the Act itself point to the order dismissing the father’s application made by her Honour as not being a parenting order within that section. That being so, the court is not obliged to have regard to the mandatory terms of s 60CC of the Act.
Nonetheless, as the authorities make clear, the determination of whether there should be a reconsideration of existing parenting orders, is one that must be made in the best interests of the child. Often that determination will focus on the nature of the change in circumstances, if any, and the detriment to the child of further litigation. Considerations raised by s 60CC of the Act may also, obviously, be relevant.
The nature of the proceeding was aptly described by Warnick J in SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363 (“SPS”) (which explanation was approved in Marsden & Winch (2009) 42 Fam LR 1 (“Marsden”) at [41]–[47]; Langmeil & Grange [2013] FamCAFC 31 at [46] and Poisat at [40]) as follows:
81. ... [W]hen the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
(Emphasis added)
41The ICL referred me to the decision of King & Finneran [2001] FamCA 344; (2001) FLC 93-079, where the application was dismissed for lacking a significant change in circumstance. It echoes what was said by Warnick J above, and particularly that the Rice & Asplund issue can be determined at a preliminary stage.
The best interests of the child
Section 60CC primary considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents
In Saif & Saif [2020] FamCA 119, Foster J stated:
95.The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
96.In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
97.In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The child has a meaningful relationship with his mother, with whom he lives, and will benefit from a continuance of that relationship.
Through his counsel, the father confirmed to the Court that the child presently enjoys a meaningful relationship with the father. Under the Orders of 4 November 2019, the child spends time with the father, inter alia, during school term times, four nights each fortnight, block time during school holidays (and on the father’s own evidence, for ten or more consecutive days on numerous occasions), and on special occasions.
The father contends that the relationship between the child and the father, the father’s wife, and the extended paternal family has greatly improved since the orders were made. The mother agrees that this has indeed occurred following the final consent parenting Orders of 4 November 2019. The father’s own evidence is that his relationship with the child has never been so strong.
The father proposes, during school term times, for the child’s time with him to be increased to five nights each fortnight, effectively ending on Monday morning before school as opposed to Sunday at 7.00 pm, and outlines reasons for such proposal, including the child’s alleged request for additional time with the father, and the inconvenience of the child having to be returned from visits to the paternal extended family to Region D by Sunday at 7.00 pm at least during school term times.
The Court is concerned that should the child’s time with the father be increased to five nights each fortnight during school term times, being a block period of time approaching an equal time arrangement, there will be an increased need for these parents to co-parent and communicate with each other in relation to the child’s day-to-day needs with a consequential increased risk of conflict to the detriment of the child.
When one considers the current Rice & Asplund dispute between the parties in respect to the proposed variation of orders that the father seeks, relating to such matters as:
(a)Changeover (including contentions that the mother’s other young children E aged six, and F aged four have been interfering at changeover);
(b)Communication relating to the child’s medical appointments;
(c)The mother allegedly enrolling the child in extracurricular activities that fall within the father’s time with the child;
(d)A proposed restraint that the mother not attend medical or educational appointments unless the father has been informed, a proposed restraint that the mother not yell at the father at changeovers or record changeovers, and a proposed restraint from allowing the child to view M+ rated film/content on any electronic device; and
(e)The mother allegedly requiring the child to change out of his school uniform at the school which has caused the child embarrassment,
it is not difficult to envisage that these parents may well struggle to co-parent the child effectively without significant conflict if the child’s time with the father is increased during school term times. Such an outcome would be to the emotional detriment of the child.
Further in this context, the father, in his own affidavit, expressly refers to his refraining from communicating with the mother relating to such matters as the child’s school work. He asserts that he holds fears in raising matters with the mother because he believes that this will cause the child to stop talking to him about things. During oral submissions, the father’s counsel expressly referred to the parties’ unhealthy dynamic in their relationship.
Again, the child presently enjoys a meaningful relationship with the father pursuant to the time-with Orders of the Court of 4 November 2019.
The Court observes that Order 30 of Boyle J’s final consent parenting Orders merely provided a Notation “that the parties agree to consider increasing [the child’s] time with the father to 5 nights per fortnight at the end of 2021 and to attend Family Dispute Resolution, if necessary, to attempt to reach an agreement.” (Court’s italics)
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The father seeks additional restraining orders, beyond the restraining orders in the Orders of 4 November 2019, relating to the child “coming into sight range of” any M+ rated films and/or content including inappropriate viewing of television series. There is no clear evidence adduced by the father as to the nature of these particular films (or indeed the content of M+ programs in general), no clear evidence as to how often the child watches these particular films or M+ programs, and no clear evidence as to any possible adverse impact upon the child in watching such programs whether regularly or otherwise. Clearly the father has a certain view about the child watching such programs and he has adduced evidence as to his parenting practice in relation to the child watching such programs and his advices given to the child in relation to such programs.
Section 60CC additional considerations
Subsection (3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child has allegedly expressed a wish to spend more time with the father but the detail provided by the father in this regard is somewhat vague. For example, in paragraph 151 of the father’s affidavit he refers to the child “when he was younger” expressing a wish to his mother at changeover to stay longer with the father.
On the other hand, the father’s partner in her affidavit filed 11 April 2023, at paragraph 28, refers to an alleged changeover on Christmas Eve 2021 when the child told the father, in the presence of the mother, that he did not want to stay Sunday nights (with the father).
Subsection (3)(b): The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The child appears to enjoy loving relationships with all of the adults in his life.
The mother’s partner deposes that the child has close bonds with his half-siblings.
The father deposes that he has developed a much closer relationship with the child since the making of the orders in 2019. The father asserts that the child has developed a positive relationships with the extended paternal family, including his new partner Ms B and her family.
Subsection (3)(c): The extent to which each of the child’s parents has taken or failed to take the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; (ii) to spend time with the child, and; (iii) to communicate with the child
The parties appear to have taken such opportunities.
Subsection (3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
There is no significant allegation that the child is not properly maintained in either parent’s care.
Subsection (3)(d): The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the meaningful relationship primary consideration.
Subsection (3)(e): The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties live fairly close to each other.
The Court refers to its discussions below under s 60CC(3)(m).
Subsection (3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The father asserts, inter alia, that the mother has regularly failed to supervise and ensure the completion of the child’s homework. The Court refers to its discussions below under s 60CC(3)(m).
Otherwise, each party would appear to have such capacities.
Subsection (3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The child is progressing well. The Court refers to its discussions below.
Subsection (3)(h): If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
Subsection (3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the meaningful relationship and need to protect primary considerations and its discussions below. Otherwise, the parties would appear to have demonstrated appropriate attitudes to the child and their responsibilities of parenthood.
Subsection (3)(j): Any family violence involving the child or a member of the child's family
The mother alleges that there was a history of the father subjecting her to mental, emotional and financial abuse and coercive control during the relationship. There are no significant allegations made by either party of relevant family violence since the Orders of 4 November 2019.
Subsection (3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
Not applicable.
Subsection (3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
If the father is prevented from pursuing his proposed parenting Orders at this threshold stage, proceedings will be at an end. The Court refers to additional consideration s 60CC(3)(m) below and its other discussions below.
Subsection (3)(m): Any other fact or circumstance that the Court thinks is relevant
The Court now further addresses the father’s contended significant change in circumstances in various respects.
Again, the father’s affidavit evidence, to the extent that it was relied upon in respect of the threshold issue, in summary, refers to, inter alia, the following (and the Court will make some comment):
(a)The relationship between the child and the father, the father’s wife, and the extended paternal family has greatly improved since the orders were made.
The mother agrees that this has indeed occurred. The Court would infer that such improvements have occurred through facilitation of the Court’s orders of 4 November 2019.
(b)The father and his wife frequently take the child to Region D on weekends to visit the extended paternal family. The current orders require them to truncate these visits in order to return to Sydney in time for changeover at 7.00 pm on Sunday.
The father appears to assert, at least in relation to the child spending time with him during school term times, that if his time was increased from Sundays at 7.00 pm to Monday before school, that this would make the child’s journey back from Region D much easier. In this context, the father asserts that the child is regularly spending time with the paternal extended family in Region D when spending time with the father. The father fails to explain, if such time was increased, exactly when the child would travel from Region D back to Sydney – later on Sunday evening or early on Monday morning before school. In any event, and again, the mother agrees that the child’s relationship with the father, his wife, and the extended paternal family has greatly improved in circumstances where, pursuant to the Orders of 4 November 2019, during school terms, the child is returned to the mother’s primary care at 7.00 pm on the fortnightly Sundays.
(c)The child has specifically requested to spend more time with the father;
(d)The father now enjoys greater flexibility in his employment, as does his wife, which would allow him to spend more time with the child;
(e)The current default order for week about time during Term 4 holidays effectively prevents the father from taking the child on significant vacations;
In respect to spending half of the Term 4 school holidays in a block period with the child, as opposed to the current arrangement, which is for week about time “failing agreement” between the parties, the Court observes that the father has not adduced any significant evidence that the parties have been unable to reach “agreement” as to the father spending time with the child beyond week about time. The father’s own evidence, in paragraph 153 of his affidavit, indicates that he has spent time with the child during the Term 4 holidays beyond week about suggesting, by inference, that the parties have been able to agree on such extended time.
(f)The child has been exposed to parental conflict at changeover.
The father asserts that on one occasion during a sports lesson for the child, the child’s half sibling F, then aged three, kicked the father. The father asserts that to avoid any distress at changeover after the child’s lesson on the Wednesday he no longer stays to watch the child and only arrives to collect the child once the sports lesson has finished, which the Court would regard as a sensible and practical course of action.
The father contends that his proposed amended changeover order would mitigate a significant amount of parental conflict that exist between the parties, however it is not readily apparent on the evidence that such conflict at changeover exists on a significant and regular basis. As indicated immediately above, the father, acting sensibly and practically, took steps to resolve an issue at changeover and decided to collect the child at the end of his lesson. The Court observes that there is already a non-denigration order in place from the Court’s orders of 4 November 2019 (see Order 20(a)).
(g)The mother has referred to the father as “Mr Randon” in conversations with the child, leading the child to do the same, and has told the child to call her partner “Dad”.
The Court observes that on the father’s evidence the child’s relationship with his new partner has become extremely close. He asserts that his new partner treats the child as if the child was her own son and he has observed the child to respect his new partner and follow her advice. The father asserts that the child refers to his new partner as “Mum [Ms B]”), to which the mother takes no issue. The father asserts that the child calls the mother’s new partner “[Mr C] Dad”.
The father asserts that his relationship with the child has never been so strong. There is no clear evidence that the mother usually refers to the father as “Mr Randon”, in the presence of the child, when the child is with living with the mother.
(h)The mother has repeatedly made medical decisions for the child, including engaging specialists, organising surgery, and booking appointments, without first consulting the father;
The father’s own evidence on this issue suggests that the mother was usually informing him of scheduled appointments before those appointments occurred in relation to the child. The father appears to take issue with at least not being consulted by the mother as to the proposed appointment date. Yet the mother asserts that she is often simply given an appointment date by the service provider’s office staff. The father does not appear to contend that he objects to the nature of the medical or other service being provided for the child.
(i)The mother has enrolled the child in extra-curricular activities which occur during the father’s time, without first consulting the father.
There does not appear to be any significant evidence that the mother has been enrolling the child in extracurricular activities which impinge upon the child’s ordered time with the father. To the contrary, the mother provides a factual example of enrolling the child in sports on a Sunday in 2017 with the father choosing not to take the child to sports on a Sunday when the child is spending Sundays with him. Another example she provides is that relating to the child’s participation in sports since 2017, in relation to which the child does not attend when spending time with the father.
There are numerous Orders in the suite of Orders of 4 November 2019 relating to the child’s extracurricular activities and providing for the parents’ involvement in such activities (e.g. Orders 9, 10, 11, 12, 13, 16).
(j)The mother’s decreased ability to assist the child with his homework.
The father is able to assist the child with homework during the time that the child spends with the father during school term times between Wednesday and Sunday on a fortnightly basis. He asserts that since having his new partner at home with him, she provides additional support for the child. As the father further asserts, the child is able to ask his teachers for homework assistance as well. The father asserts that when the child is in his care he reads books with the child before bed each night. He asserts that since he has been working with the child with his homework the child has moved up one level in his maths class. He asserts that since the child has been spending time with him regularly the child has improved in school and which is reflected in his school reports. The December 2022 school report from G School for the child, Year 5, refers to the child’s sound achievement in his various subjects and the positive attributes of the child on the last page of that report. The child’s attendance at school is good. The existing Orders of 4 November 2019 provide for the father to be involved in the child’s schooling (e.g. see Order 18). The father’s new partner asserts that she has introduced the child to a musical instrument and to the Country H language which she speaks.
(k)Improvement in the father’s mental health.
The father asserts that his mental health was parlous in 2014. He asserts that at the time of making the 4 November 2019 Orders he was not taking medication for his mental health. Indeed he asserts that about two years after his parlous mental health in 2014 his treating practitioners decided that he was not required to take antidepressant medication anymore. He asserts that he has not found the need to attend upon a psychologist or need any medications. These assertions are consistent with the Orders of 4 November 2019 which provide, inter alia, for the child to spend unsupervised time with the father. The Court observes that the father was engaged to his new partner Ms B in 2018, he commenced cohabitation with his new partner in 2018, and they were married in 2019.
In the view of the Court, the father’s contended changes in circumstances since 4 November 2019, whether considered individually or collectively, are not sufficiently material or significant so as to permit the father to reopen parenting proceedings; there has been an insufficient change of circumstances shown to justify embarking on a (fresh) hearing.
Even if the Court is incorrect in concluding that the above contended changes in circumstances since 4 November 2019 are not sufficiently material or significant, whether considered individually or collectively, the Court would nevertheless conclude, evaluating the above discussed relevant considerations under section 60CC of the Act, that it would not be in the best interests of the child to permit the father to commence fresh parenting proceedings.
The child is progressing well in his various spheres of life. He appears to be emotionally and physically well. Both parents appear to be committed to his sound welfare and development. These matters are occurring within the context of the existing consent final parenting Orders of 4 November 2019. Should the Court permit the father to seek his proposed fresh parenting orders the child would at least be involved in interviews by Family Consultants, it is possible that an Independent Children’s Lawyer will be appointed to represent him leading to ICL interviews with the child, and there is a risk (despite the existing restraining order that neither parent discuss the proceedings with the child) that the child may be exposed to the content of future ongoing parenting proceedings. Such exposure may be confusing and emotionally harmful to the child, noting that family law proceedings are adversarial in nature. It is possible that any future ongoing parenting proceedings, if leave is granted to the father to commence fresh proceedings, may well continue for between about one to two years; such a period is a significant time in the life of a child. For example, the Court observes that at the Parramatta Registry, the waiting time for the preparation of a Family Report is between about six to 12 months. The father can seek, if he is determined to vary the current Orders of 4 November 2019, to further utilise non-court avenues to possibly achieve some compromise with the mother in relation to his proposals.
Accordingly, the father’s Amended Initiating Application to commence fresh parenting proceedings filed 4 October 2022 should be dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Deputy Associate:
Dated: 15 August 2023
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